Divorce for fault and compensation
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The spouse must prove that his or her spouse was at fault and that his or her loss resulted directly from that fault.
On this basis, a claim for damages can be made in all divorce proceedings. And at any time during the proceedings, even after the divorce has been granted.
Depriving his ex-girlfriend of his children by moving to Guadeloupe with them despite a non-conciliation order fixing their residence at the marital home does not constitute a loss linked to the dissolution of the marriage for which compensation may be awarded under article 266 of the Civil Code.
A divorce between spouses is awarded on the basis of exclusive fault of the wife who, moreover, is ordered to pay damages on the basis of article 266 of the Civil Code. The grounds were that she had deprived her ex-girlfriend of her daughters for 11 months by leaving the marital home to move with them to Guadeloupe, despite a non-conciliation order which fixed their residence at the said home.
This is how the globetrotter contests.
Solution adopted by the Cour de cassation :
Rightly so, according to the Cour de cassation, which unsurprisingly censured the analysis of the trial judges. It recalls the text, according to which, when the divorce is ordered to the exclusive detriment of one of the spouses, that spouse may be ordered to pay damages to compensate for the particularly serious consequences that the dissolution of the marriage has had on the other spouse. This is not the case here. The loss for which compensation was awarded did not result from the dissolution of the marriage.
Illustration of a chronic difficulty in establishing a claim for damages in the context of the separation of spouses.
The application of article 266 is doubly circumscribed. The prejudice must therefore be particularly serious and linked to the dissolution of the marriage.
The claim for compensation should therefore have been based on the ordinary law of tort (C. civ. art. 1240).
To know (Divorce for fault and compensation):
Article 266 of the Civil Code states:«Without prejudice to the application of Article 270, In the case of a divorce, damages may be awarded to a spouse to compensate for the particularly serious consequences he or she suffers as a result of the dissolution of the marriage, either where he or she was the defendant in a divorce granted on the grounds of definitive alteration of the marriage bond and had not himself or herself filed for divorce, or where the divorce is granted to the sole detriment of his or her spouse.»
To obtain damages under Article 266 of the Civil Code, There are a number of cumulative conditions to be met:
you must be divorced for fault;
or you must be a defendant in a divorce brought by your spouse on the grounds of permanent impairment of the marriage bond;
and you must suffer serious consequences as a result of divorce.
Therein lies the difficulty.
A spouse seeking damages must therefore prove that the divorce will have serious consequences for him or her.
It will therefore be a matter of judgement, but it must be understood that the serious consequences must flow from the divorce.
In other words, the grounds for divorce are not relevant.
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